Contemporary Challenges to the Implementation of International

Contemporary Challenges to the Implementation of Interna- tional Humanitarian Law Dr. Ray Murphy ∗ Introduction The problem of how to deal with prisoners of war is not a new one; even the Old Tes- tament calls for humane treatment of those captured in the course of armed conflict.1 The issue has assumed significant contemporary relevance as a result of developments in Iraq and Afghanistan. Rights of prisoners/detainees during armed conflict is governed by the Law of Armed Conflict (formerly referred to as the Laws of War), or what is probably better known today as International Humanitarian Law. There is an obligation on all states and armed forces to ensure that international humanitarian law is up- held. This involves a responsibility to disseminate information and educate popula- tions, but especially members of armed forces, regarding the principles of international humanitarian law. This branch of international law has always come under pressure during armed conflict, and the current conflicts taking place in Iraq and Afghanistan are no exception. In ancient times the concept of prisoners of war was unknown. Captives were re- garded as part of the spoils of victory, and they were frequently killed, enslaved, or held for ransom. Not surprisingly, prisoners of war have traditionally been among the most vulnerable groups in situations of armed conflict. Their treatment is a question with which the laws of war have been particularly concerned. Their detention is a form of permissible internment, and it should come as no surprise to learn that the laws governing armed conflict lay down detailed rules for their protection. This article ex- amines the origins of the laws of war and their relationship to international human rights law, with particular reference to the protection provided to prisoners of war. A serious obstacle confronting those charged with ensuring compliance with the norms of humanitarian law is to make the rules establishing such norms accessible and relevant to those most responsible for their implementation, i.e., the soldiers on the ground. The language of the international instruments in question is often obtuse and unintelligible. The principles enshrined in these instruments, when combined with a “dumb down” approach for classroom instruction, are often presented in a half-hearted and “touchy-feely” way that makes the instructors and principles involved appear out of touch with reality. Best has described the situation as follows: It cannot be said that books in this field are lacking. The international law of war … has become something of a boom industry in the legal realm and raises a regiment of professional experts. The way in which those experts write about it and debate it ∗ Dr. Ray Murphy is a senior lecturer in law at the Irish Centre for Human Rights, National University of Ireland, Galway. 1 See 2 Kings, 6:21–22. 99 THE QUARTERLY JOURNAL among themselves, however, is not often directly communicable to all the others who also have pressing interests of their own in the subject and who, some of them, also write and confer increasingly about it, conscious that, beyond the legal experts they may happily have contact, are many from whom they are cut off.2 What are the Laws of War or International Humanitarian Law? International humanitarian law constitutes one of the oldest branches of public international law. Its two main branches are referred to as the law of the Hague and the law of Geneva. The law of the Hague regulates the means and methods of warfare. It is codified primarily in the Regulations Respecting the Laws and Customs of War on Land (“the Hague Regulations”) annexed to the 1907 Hague Convention IV (“the Hague Convention”). These govern the actual conduct of hostilities during armed conflict, such as the selection of targets and permissible weapons for use against the enemy. The law of Geneva is codified primarily in four conventions adopted in 1949, and these are known collectively as the Geneva Conventions for the Protection of War Victims.3 Their aim is to protect certain categories of persons, which include civilians, the wounded, and prisoners of war. Significant aspects of the law of the Hague and the law of Geneva were merged in a common treaty regime in the 1977 Protocols Addi- tional to the Geneva Conventions: one relating to the victims of international armed conflict (“Protocol I”), and the other to the victims of non-international armed conflicts (“Protocol II”).4 Among the equivalent and interchangeable expressions—the “Laws of War,” the “Law of Armed Conflict,” and “International Humanitarian Law”—the first is the oldest. The expression “laws of war” dates back to when it was customary to make a for- mal declaration of war before initiating an armed attack on another state. Nowadays the term “armed conflict” is used in place of war, and while the military tend to prefer the term “law of armed conflict,” the International Committee of the Red Cross (“ICRC”) and other commentators use the expression “international humanitarian law” to cover the broad range of international treaties and principles applicable to situations of armed conflict. It also includes a number of rules of customary international law. The fundamental aim of international humanitarian law is to establish limits to the means and 2 Geoffrey Best, War and Law since 1945 (Oxford: Clarendon Press, 1994), 10. An example of a more accessible read is A.P.V. Rogers, Law on the battlefield, 2nd ed. (Manchester: Manchester University Press, 2004) (1999). 3 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949 (Geneva I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949 (Ge- neva II); Geneva Convention Relative to the Treatment of Prisoners of War 1949 (Geneva III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Geneva IV). 4 See generally Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1946 (Geneva: International Committee of the Red Cross; M. Ni- jhoff, publishers, 1987). 100 VOL. III, NO. 3, SEPTEMBER 2004 methods of armed conflict, and to protect non-combatants—whether they are the wounded, sick, or captured soldiers—and civilians.5 International Humanitarian Law: Background The norms regulating the conduct of combatants in times of conflict are not only of ancient origin, but they are also found in diverse cultures on many continents.6 Up until the end of the nineteenth century, the treatment of prisoners of war varied a great deal depending on the nature of a conflict, the parties involved, and its geographical loca- tion. The killing or enslavement of prisoners was often linked to the failure to distinguish between combatants and non-combatants, and the obligation to distinguish themselves from civilians remains one of the fundamental rules that combatants must adhere to in order to be treated as prisoners of war. The 1785 treaty of friendship between Prussia and the United States was one of the first international treaties to contain the obligation of the contracting parties to protect prisoners of war. Later, during the American Civil War, President Lincoln adopted the Lieber Code.7 This contained detailed rules for the protection of, inter alia, prisoners of war.8 What was really remarkable about this code is that it was introduced unilater- ally in the course of a protracted and bitter civil war when the Union government was intent upon defeating the Confederacy and ensuring that no foreign state would recog- nize it as legitimate. Despite the threat to the Union, Lincoln still had the foresight to introduce a comprehensive set of humanitarian rules governing the conduct of hostilities. Even today the rules of international humanitarian law applicable in internal armed conflict are not as extensive as those applied by the Union Army at the time. Not surprisingly, the Code had a significant impact on later attempts by European states to formulate similar rules. 5 See C. Greenwood, “The Relationship of Ius ad Bellum and Ius in Bello,” Review of Interna- tional Studies 9 (1983); Hans-Peter Gasser, International Humanitarian Law - An Introduc- tion, trans. from German by S. Fitzgerald and S. Mutti (Haupt: Henri Dunant Centre, 1993); S. Nahlik, “A Brief Outline of International Humanitarian Law,” International Review of the Red Cross (July-August 1984); and F. Kalshoven, Constraints on the Waging of War (Ge- neva: ICRC, 1987). 6 Ibid. Greenwood, “The Relationship of Ius ad Bellum and Ius in Bello; Hans-Peter Gasser, International Humanitarian Law - An Introduction; Nahlik, “A Brief Outline of Interna- tional Humanitarian Law”; Kalshoven, Constraints on the Waging of War; and J. Simpson Study, Law Applicable to Canadian Forces in Somalia 1992/93 (Ottawa: Public Works and Government Services Canada, 1997), 13. 7 In 1861, Francis Lieber, a professor of political science and jurisprudence at Columbia University in New York, prepared a manual based on international law (the Lieber Code), which governed the Union Army during the American Civil War (1861-65). See D. Schindler and J. Toman, The Laws of Armed Conflict: A Collection of Conventions, Resolu- tions, and Other Documents, 3rd ed. (Dordrecht: Nijhoff, 1988), 3. 8 The Lieber Code, Articles 49–59, in Schindler and Toman, Laws of Armed Conflict. 101 THE QUARTERLY JOURNAL After the piecemeal development of humanitarian

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